TERMS OF USE - PAYMENTS
This Terms of Use was last updated on: January 12th, 2017.
If an agreement exists between you and DocuSign for DocuSign Payments (“Agreement”), then, in the event of any inconsistency or conflict between this Terms of Use and the Agreement, the Agreement shall control with respect to DocuSign Payments.
This Terms of Use, WHICH INCLUDES A MANDATORY ARBITRATION REQUIREMENT IN SECTION 7 BELOW, forms a legal agreement between you and DocuSign, Inc. (“DocuSign”), which governs your access to and use of DocuSign Payments. Please review this entire Terms of Use before you decide whether to accept it and continue with payment. BY CLICKING ON THE “PAY NOW” BUTTON ON THE MODAL WINDOW OR BY SUMITTING AND/OR ACCEPTING PAYMENT, YOU AGREE TO BE BOUND BY THIS TERMS OF USE.
1. DEFINITIONS
“Customer” a person that registers with and has a DocuSign Signature account, and has a DocuSign Payments enabled DocuSign Signature account.
“DocuSign Payments” means the feature of DocuSign Signature designed to collect payment information for the purpose of payment processing.
“DocuSign Signature” means the on-demand electronic signature DocuSign service, which provides online display, certified delivery, acknowledgment, electronic signature, and storage services for eDocuments via the Internet.
“eDocuments” refers to a contract, notice, disclosure or other record or document deposited into DocuSign Signature by Customer for processing.
“Envelope” means an electronic record containing one or more eDocuments consisting of a single page or a group of pages of data uploaded to the system of DocuSign Signature.
“Payment Applications” refer broadly to all payment applications, gateways, processors and service providers that store, process, or transmit cardholder data as part of authorization or settlement, where these payment applications are sold, distributed, or licensed to Customer and/or you.
“Transaction Data” means the metadata associated with an Envelope (such as transaction history, image hash value, method and time of Envelope deletion, sender and recipient names, email addresses and signature IDs) and maintained by DocuSign in order to establish the digital audit trail required by DocuSign Signature.
“You” or “your” means the person that uses DocuSign Payments to make a payment transaction that results in a debiting or charging of an amount to such person’s payment instrument and the crediting of funds to Customer; and/or accepts a payment transaction that results in a crediting of funds to such person and the debiting or charging of an amount to Customer.
2. PAYMENT TRANSACTION PROCESSING
2.1 To facilitate payments, you will be required to provide DocuSign with certain information to allow DocuSign, among other things: transmit your name or other identifying information; to receive appropriate payment authorization if applicable, and to collect any other information a Customer or Payment Application requires of you to send the payment. In order to use DocuSign Payments, you must provide current, complete, and accurate information and maintain it as current and accurate. You authorize DocuSign to store, process and transmit your information as necessary for Customer and/or Payment Application to process a payment transaction to complete a payment for purchase between Customer and you, and/or to maintain Transaction Data.
2.2 You acknowledge and agree that your purchases and payment transactions are transactions between Customer and you, and not with DocuSign or any of its affiliates. DocuSign is not a Payment Application or a party to your purchases. DocuSign and its affiliates are not a buyer or a seller in connection with any payment transaction, unless expressly designated as such in the listing of the merchandise, products or services on a DocuSign website or ordering document. You acknowledge that DocuSign does not control the payment methods made available by the Payment Applications through DocuSign Payments nor the products or services that are offered by Customers, and DocuSign cannot ensure that a Customer will complete a transaction or is authorized to do so. The Payment Application and Customer are independent contractors and not agents or employees of DocuSign or its affiliates.
2.3 You acknowledge and agree that you are responsible for complying and conducting all business transactions in accordance with all applicable federal, state, and local laws and regulations at all times.
3. NO WARRANTY; DISCLAIMERS
DOCUSIGN PAYMENTS IS PROVIDED “AS-IS”, “AS AVAILABLE” AND, TO THE FULLEST EXTENT PERMISSIBLE BY LAW, WITHOUT ANY REPRESENTATION OR WARRANTY, WHETHER EXPRESS, IMPLIED OR STATUTORY. DOCUSIGN SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. DOCUSIGN MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND REGARDING THE EFFECTIVENESS OR VALIDITY OF ANY PAYMENTS, REGARDING THE TRANSACTIONS SOUGHT TO BE EFFECTED BY ANY PAYMENTS OR EDOCUMENTS, OR THAT THE FUNCTIONS CONTAINED IN DOCUSIGN PAYMENTS WILL BE UNINTERRUPTED OR ERROR FREE. DOCUSIGN SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, OR DELAY OR MISDELIVERY OF A PAYMENT, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS OR DOCUSIGN PAYMENTS.
4. RELEASE AND COVENANT NOT TO SUE
You acknowledge and agree to release DocuSign and its affiliates, and their respective employees, officers, directors, agents, and representatives (each a “DocuSign Party” and collectively “DocuSign Parties”) from all claims, demands, and damages (actual and consequential) arising out of or in any way connected with a dispute that may arise between you and Customer and/or you and a Payment Application for use of DocuSign Payments (“Payments Disputes”), and you hereby covenant and agree that you will not sue or bring or assert any action, claim or cause of action in any jurisdiction or forum against any DocuSign Party arising from or relating to a Payments Dispute. You stipulate and agree that DocuSign Parties may plead this Terms of Use as a complete defense and bar to any Payments Disputes released by this Section 4, and in such event, the party bringing such barred action, claim or demand shall indemnify and hold the DocuSign Parties harmless from and against any and all costs and expenses arising therefrom (including reasonable attorneys’ fees and expenses incurred in connection therewith).
5. LIMITATIONS OF LIABILITY; FORCE MAJEURE
5.1 IN NO EVENT SHALL DOCUSIGN BE RESPONSIBLE OR LIABLE TO YOU UNDER ANY CIRCUMSTANCES FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF BUSINESS, WORK STOPPAGE, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES WHICH MAY BE INCURRED IN CONNECTION WITH DOCUSIGN OR DOCUSIGN PAYMENTS, OR ANY GOODS, SERVICES, OR INFORMATION PURCHASED, RECEIVED, SOLD OR PAID FOR BY WAY OF DOCUSIGN PAYMENTS, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF DOCUSIGN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS. IN NO EVENT SHALL DOCUSIGN’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS OF USE OR YOUR USE OF DOCUSIGN PAYMENTS, REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED ONE-HUNDRED DOLLARS ($100.00 USD) OR THE EQUIVALENT IN LOCAL CURRENCY. The limitation of liability reflects the allocation of risk between DocuSign and you. The limitations specified in this section will survive and apply even if any limited remedy specified in this Terms of Use is found to have failed of its essential purpose.
5.2 DocuSign shall have no liability for any failure or delay resulting from any condition beyond the reasonable control of DocuSign, including by not limited to, governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
6. GOVERNING LAW
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, the parties agree that DocuSign is the proponent of this Terms of Use. Notwithstanding the parties’ agreement to mandatory arbitration, either party may seek any interim or preliminary injunctive relief from a court of competent jurisdiction in San Francisco, CA, as necessary to protect the party's rights or property pending the completion of arbitration. The parties submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in San Francisco, California, U.S.A.
7. MANDATORY ARBITRATION
7.1 General. ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS TERMS OF USE OR DOCUSIGN PAYMENTS WILL BE RESOLVED BY BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR, RATHER THAN IN COURT. The arbitration shall be administered by the Judicial Arbitration and Mediation Services http://www.jamsadr.com/ (”JAMS”) pursuant to JAMS’ Streamlined Arbitration Rules and Procedures, if applicable, or otherwise pursuant to its Comprehensive Arbitration Rules and Procedures and in accordance with the Expedited Procedures in those Rules (the “JAMS Rules”). Either party may initiate the arbitration. The arbitration will be conducted in San Francisco County, California, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Payment of all fees will be governed by JAMS Rules.
7.2 No Class Actions. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND MAY NOT BE CONSOLIDATED WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY AND CANNOT BE BROUGHT AS A CLASS ACTION. If a court decides that this subsection on “No Class Actions” is not enforceable or valid, then the entire Section 8 (Mandatory Arbitration) will be null and void. But the remainder of this Terms of Use will still apply.
8. USE OF ELECTRONIC COMMUNICATIONS; NOTICE
8.1 DocuSign may communicate with you regarding DocuSign Payments by means of electronic communications, including (a) sending electronic mail to the email address Customer or you provided for a payment transaction, or (b) posting notices or communications on a DocuSign website, or (c) using the DocuSign services or other reasonable means. You agree that DocuSign may communicate with you by means of electronic communications the following: this Terms of Use (and revisions and amendments), notices or disclosures regarding DocuSign Payments, and any other matter relating to your use of DocuSign Payments.
8.2 For those communications or records that DocuSign is otherwise required under applicable law to provide in a written paper form to you, you agree that we may provide such communications or records by means of electronic communications. The following additional terms will apply to such electronic communications: (a) you may contact DocuSign through the Support contact page to request another electronic copy of the electronic communication without a fee; (b) you may request a paper copy of such an electronic communication, and DocuSign reserves the right to charge a fee to provide such paper copy; (c) you may contact DocuSign through the contact page to withdraw consent to receive electronic communications; and (d) DocuSign reserve the right to terminate your use of DocuSign Payments if you decline or withdraw consent to receive electronic communications from DocuSign.
8.3 Notice to DocuSign may be made by mail to: DocuSign, Inc., Attn: DocuSign Legal, 221 Main Street, Suite 1000, San Francisco, CA 94105.
9. WAIVER
The waiver by either party of any breach of any provision of this Terms of Use does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Terms of Use will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Terms of Use.
10. SEVERABILITY
If any part of this Terms of Use is found to be illegal, unenforceable, or invalid, the remaining portions of this Terms of Use will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under this Terms of Use is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
11. MODIFICATION OF TERMS OF USE
DocuSign shall have the right, in its sole and absolute discretion, to change, modify, or amend any portion of this Terms of Service at any time by posting notification on a DocuSign website or otherwise communicating the notification to you. The changes will become effective, and shall be deemed accepted by you, after the initial posting and shall apply on a going-forward basis with respect to payment transactions initiated after the posting date. In the event that you do not agree with any such modification, your sole and exclusive remedy is to discontinue your use of DocuSign Payments.
12. ENTIRE AGREEMENT
This Terms of Use, which includes the language and paragraphs preceding Section 1, is the final, complete, and exclusive expression of the agreement between these parties regarding the DocuSign Payments provided under this Terms of Use. This Terms of Use supersedes, and the parties disclaim any reliance on, all previous oral and written communications (including any confidentiality agreements pertaining to the DocuSign Payments under this Terms of Use, representations, proposals, understandings, and negotiations with respect to the matter hereof and apply to the exclusion of any other terms that the you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
13. LANGUAGES AND TRANSLATIONS
DocuSign may provide translations of this Terms of Use or other terms or policies. Translations are provided for informational purposes and if there is an inconsistency or conflict between a translation and the English version, the English version will control.